CASES

ARGUED AND DETERMINED

IN THE

COURT OF APPEALS

OF

MARYLAND.

* COURT OF APPEALS, (E. S.) JUNE TERM, 1820. 1 WILMER vs. HARRIS.

Where there is a judgment by default in an action on a bond with a collateral condition, there must be breaches suggested, and the damages assessed, as directed by the Statute of 8 & 9 Wm. III, ch. 11, before an execution can issue against the defendant; and if it be sooner issued it will, on motion, be quashed.

If the breaches are stated in the declaration, and there is a judgment for the plaintiff on confession, by nil dicit, or on demurrer, they need not be again suggested to enable the jury to assess the damages; nor is such suggestion necessary where the judgment is for the plaintiff on the defendant's demurrer to a replication setting forth the breaches. (a) Before the damages in such an action are assessed in the manner before stated, the judgment is only interlocutory.

The Act of Assembly of 1794, ch. 46, does not interfere with the Statute of 8 & 9 Wm. III, ch. 11.

The admissions of an executor or administrator of a co-obligor, are not evidence against the surviving obligor in an action against him by the obligee. (b)

An appeal will lie, on behalf of the party aggrieved, from the judgment on a motion to set aside an execution. HARRIS S. WILMER, (note.) (c)

(a) See Laidler vs. State, 2 H. & G. 277; Sasscer vs. Walker, 5 G. & J. 102. (b) See Walkup vs. Pratt, post, m. p. 51.

(c) Approved in Greff vs. Fickey, 30 Md. 78. and Green vs. Hamilton, 16 Md.

APPEAL from Queen Anne's County Court. This was an action of debt instituted by the appellee against the appellant, on a writing obligatory, executed by T. Harris, P. Wilmer, (the appellant,) and W. Wilmer, to E. Harris, (the appellee,) on the 16th of July, 1810, in the penal sum of $9,000, and reciting that "the said E. Harris, having loaned his notes to H. Wilmer for the sum above specified, for the purpose of obtaining an accommodation at bank for the said H. Wilmer's use; and for the purpose of securing and indemnifying the said E. Harris from all and every challenge, claim or demand, which may be brought, exhibited, or prosecuted against him, for or on account of the said accommodation, the said T. Harris, P. Wilmer and W. Wilmer, have agreed to execute this bond. Now the condition of the within obligation is such, that if the said T. Harris, P. Wilmer and W. Wilmer, do and shall at all times hereafter save harmless and keep indemnified the said E. Harris, his, &c. from all and every challenge, claim or demand, which 2 may be brought, exhibited, or prosecuted against him or them, for or on account of his having loaned his notes to the said Wilmer for the sum specified within, and from all costs, damages and expenses, he or they may sustain or be put to by reason thereof, then the within obligation to be void," &c. The defendant, on whom a rule was laid to answer the plaintiff's declaration, neglected to plead, and at October Term, 1813, a judgment was entered against him by default; and on the plaintiff's motion, the Court ordered a proceeding in the nature of a writ of inquiry, to be executed at bar, at the succeeding term of the Court, to assess the damages. Before the succeeding term, the plaintiff issued a ca. sa. on the judgment thus rendered, and the defendant was taken in execution. At the return day of the writ, on motion of the defendant, the execution was quashed, and the defendant discharged. The plaintiff appealed to the Court of Appeals, and the proceedings were transmitted. (a)

(a) On the appeal here referred to of Harris vs. Wilmer, the opinion of the Court of Appeals, after hearing argument, was delivered at June Term, 1817, by CHASE, C. J. The Court are of opinion, that in expounding the Statute of 8 & 9 William III, such a construction ought to be given to it as will remove the mischief intended to be redressed as to the defendants, and which will advance the remedy of the plaintiffs, for the attainment of justice in the cases specified in the statute. The oppression complained of, as to defendants in suits on bonds or instruments, with collateral conditions, was, that a judgment was obtained by the plaintiff for the penalty, which greatly exceeded the damages sustained by the plaintiff by the breach of the covenant, and the defendant was compelled to go into Chancery to restrain the plaintiff's execution to the damages actually sustained. The plaintiff's remedy was advanced, by permitting him to assign as many breaches of the covenants as the justice of his case might require. The statute cannot be considered as giving an additional remedy to the plaintiff in the cases embraced by it-because such exposition would frustrate the intention of the makers, and defeat the principal object of it-the relieving